Citation Nr: 1522765
Decision Date: 05/29/15 Archive Date: 06/11/15
DOCKET NO. 13-21 417 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for hypertension, to include as due to service-connected diabetes mellitus.
REPRESENTATION
Veteran represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
Shauna M. Watkins, Counsel
INTRODUCTION
The Veteran served on active duty from August 1964 to August 1967, from January 1968 to April 1976, and from April 1980 to September 1987.
The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the benefit sought on appeal. The Veteran filed a Notice of Disagreement (NOD) in November 2012. The RO issued a Statement of the Case (SOC) in May 2013. In July 2013, the Veteran filed his Substantive Appeal.
The Board notes that additional pertinent evidence was submitted into the record following the most recent readjudication of this appeal by the Agency of Original Jurisdiction (AOJ) in the May 2013 SOC. This new evidence has not been reviewed by the AOJ and a waiver of review of this evidence by the Veteran or his representative is not of record. Under section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, if new evidence is submitted with or after a Substantive Appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. 38 U.S.C.A. § 7105(e) (West 2014). Here, the Veteran's Substantive Appeal was submitted on July 2013 and the Veteran has not explicitly requested AOJ consideration. Therefore, the claim does not need to be remanded solely for consideration of such new evidence. Id.
This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records.
The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required.
REMAND
The Veteran contends that he incurred hypertension during active service. He alternatively contends that his service-connected diabetes mellitus caused or aggravated (permanently worsened) his hypertension. Having reviewed the record evidence, the Board finds that additional development is required before the underlying claims can be adjudicated on the merits.
The Veteran was afforded a VA examination and medical opinion in September 2011. He was diagnosed with hypertension. The VA examiner provided a negative nexus regarding the currently diagnosed hypertension and direct service connection and secondary service connection. The Board finds that the medical opinion regarding secondary service connection is not yet adequate for VA adjudication purposes. In this regard, the VA examiner only provided a negative nexus opinion regarding secondary service connection based on causation for the hypertension. The examiner did not address whether the Veteran's currently diagnosed hypertension was aggravated beyond its natural progression by his service-connected diabetes mellitus (as the Veteran contends). 38 C.F.R. § 3.310 (2014). The examiner also referenced one piece of medical literature but did not address the medical literature submitted by the Veteran. Thus, the Board finds that, on remand, a VA addendum medical opinion should be obtained on the issue of secondary service connection. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014).
The AOJ also should attempt to obtain the Veteran's updated VA and private treatment records.
Accordingly, the case is REMANDED for the following actions:
1. Contact the Veteran and/or his service representative and ask him to identify all VA and non-VA clinicians who have treated him for hypertension since his service separation. Obtain all VA treatment records which have not been obtained already. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file.
2. Thereafter, forward a copy of this remand and the Veteran's claims file to the VA clinician who conducted the Veteran's September 2011 VA examination in order to obtain an addendum opinion. This examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) than the Veteran's service-connected diabetes mellitus caused or aggravated (worsened beyond the normal progression) his hypertension. If aggravation is shown, then the examiner should quantify the degree of aggravation, if possible. In forming his or her opinion, the VA examiner is asked to consider the Veteran's lay statements regarding the progression of the disorder, and the medical literature submitted by the Veteran. A complete rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the examiner should explain why this is so.
3. If, and only if, the September 2011 VA examiner is not available, then schedule the Veteran for appropriate VA examination to determine the nature and etiology of his hypertension. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible.
Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that hypertension, if diagnosed, is related to active service or any incident of service. The examiner also should state whether is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected diabetes mellitus caused or aggravated (permanently worsened) his hypertension, if diagnosed. A complete rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the examiner should explain why this is so.
4. The Veteran should be given adequate notice of the requested examination, if scheduled, which includes advising him of the consequences of his failure to report to the examination. If he fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file.
5. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claim. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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MICHAEL T. OSBORNE
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).